Saturday, February 26, 2011

February 25 is a day for recalling February 1986 and the times that preceded it.My own thoughts about what transpired have not changed:

“There is a tendency to attribute the rebirth of democracy to the events of the four days of February 1986.Those days will forever be remembered as a shining moment in a people’s history; but the four days do not tell all.EDSA was but a part of a process, albeit the most memorable both for the intensity of its emotion and its dramatically eye-catching and infectious symbolism.But the long process of which it was a part includes both the struggles that precipitated the imposition of martial law as well as the struggles during the long dark nights that followed.

“There was never a moment, starting on September 21, 1972, when the nation was not moving towards EDSA.The underground struggle, the bloody encounters, the groans of torture victims, the pamphleteering, the rallies, both political and religious, the silent storming of heaven by contemplative nuns, the whir of fax machines, the electoral struggle under the most adverse circumstances, and, yes, even the ‘collaboration’ with the enemy -- each in its own way contributed to the assurance of rebirth.In the end, Divine Providence, which the Filipino people had first formally invoked in its 1935 Constitution, put the pieces together and let them explode into the celebration that was EDSA.

“When I reflect on the events of twenty years ago, I see hubrisas divine Providence’s triggering weapon for the final downfall of the ruler.Feeling that he bestrode the world like an unconquerable colossus, President Marcos dared all challengers to a ‘snap election.’That was November 1985.The events that followed brought out a multiplicity of heroes no one of whom could have achieved the result alone.

“First, presidential hopefuls sacrificed their ambition (realistic or not) in favor of one presidential candidate supported by all.They anointed a housewife inexperienced in governance, derisively branded by the ‘wise’ aswalang alam, to become the ‘foolish’ instrument through whom Providence would confound the proud.Her battle cry of tama na, sobra nacaptured the public imagination.

“Next, in the early weeks of February, whether by free choice or by desperate necessity, new heroes emerged.The computer operators unmasked the conspiracy to cheat the ‘foolish’ woman of her electoral victory.Government intelligence officers discovered a RAM plot for a coup d’etat.Trapped, the soldiers made a defiant stand.To the death, they said.

“Then followed the call of the Cardinal and of Butch Aquino for the populace to rescue the beleaguered soldiers.The people came in massed brigades of all ages and sexes to shield the soldiers from the threatening mortars of the President.

“The mortars were never fired.Fundamental humanity overcame the soldiery.Loyalty to the sovereign people conquered, and the soldiers turned their back on the Commander-in-Chief.In that fact too there was heroism.And the dramatic encounter between civilian and soldiers, bound together by the bonds of love of the same country and of the same people, is what is celebrated as salubong,symbolic of a people determined to join hands and work for a new future.”

Today the lament is sometimes heard that nothing has really changed since 1986.What a waste EDSA I was.That obviously is not true.

The government structure under the 1987 Constitution, though by no means perfect, is better than the government that evolved from the 1973 Constitution.Imperfect as it is as a protest against the Marcos Constitution, in more ways than one it is truly democratic.

Congress today is structurally almost the same as that of the 1935 Constitution even if, in terms of the quality of membership, it suffers by comparison with those of the 1935 Congress.But at least it is different from the Batasang Pambansa.

As in the 1935 Constitution, the office of President is not free from the temptation towards to authoritarianism.Much depends on who holds the power.For the moment, we seem to be safe.

The Supreme Court membership today does not go through the same rigid screening as the members of the Court under the 1935 Constitution. But collectively it is an improvement on the Marcos Constitution.

The emotion and drama of February 1986 have died down and I do not see “people power” like that of EDSA I emerging.Nor do I see hubrisprecipitating radical reform.Not yet, anyway.What I see is an emerging people power in the form of energized local governments, unfortunately not yet nationwide but hitherto only here and there.But I also see corruption and popular indifference of a people lulled by economic and technological advances as major obstacle to progress.In the end, there is truth to the dictum that a people get the government they deserve.How can everyone be awakened to the realization that the future depends not on government but on all of us?

February 25 is a day for recalling February 1986 and the times that preceded it.My own thoughts about what transpired have not changed:

“There is a tendency to attribute the rebirth of democracy to the events of the four days of February 1986.Those days will forever be remembered as a shining moment in a people’s history; but the four days do not tell all.EDSA was but a part of a process, albeit the most memorable both for the intensity of its emotion and its dramatically eye-catching and infectious symbolism.But the long process of which it was a part includes both the struggles that precipitated the imposition of martial law as well as the struggles during the long dark nights that followed.

“There was never a moment, starting on September 21, 1972, when the nation was not moving towards EDSA.The underground struggle, the bloody encounters, the groans of torture victims, the pamphleteering, the rallies, both political and religious, the silent storming of heaven by contemplative nuns, the whir of fax machines, the electoral struggle under the most adverse circumstances, and, yes, even the ‘collaboration’ with the enemy -- each in its own way contributed to the assurance of rebirth.In the end, Divine Providence, which the Filipino people had first formally invoked in its 1935 Constitution, put the pieces together and let them explode into the celebration that was EDSA.

“When I reflect on the events of twenty years ago, I see hubrisas divine Providence’s triggering weapon for the final downfall of the ruler.Feeling that he bestrode the world like an unconquerable colossus, President Marcos dared all challengers to a ‘snap election.’That was November 1985.The events that followed brought out a multiplicity of heroes no one of whom could have achieved the result alone.

“First, presidential hopefuls sacrificed their ambition (realistic or not) in favor of one presidential candidate supported by all.They anointed a housewife inexperienced in governance, derisively branded by the ‘wise’ as walang alam, to become the ‘foolish’ instrument through whom Providence would confound the proud.Her battle cry of tama na, sobra nacaptured the public imagination.

“Next, in the early weeks of February, whether by free choice or by desperate necessity, new heroes emerged.The computer operators unmasked the conspiracy to cheat the ‘foolish’ woman of her electoral victory.Government intelligence officers discovered a RAM plot for a coup d’etat.Trapped, the soldiers made a defiant stand.To the death, they said.

“Then followed the call of the Cardinal and of Butch Aquino for the populace to rescue the beleaguered soldiers.The people came in massed brigades of all ages and sexes to shield the soldiers from the threatening mortars of the President.

“The mortars were never fired.Fundamental humanity overcame the soldiery.Loyalty to the sovereign people conquered, and the soldiers turned their back on the Commander-in-Chief.In that fact too there was heroism.And the dramatic encounter between civilian and soldiers, bound together by the bonds of love of the same country and of the same people, is what is celebrated as salubong,symbolic of a people determined to join hands and work for a new future.”

Today the lament is sometimes heard that nothing has really changed since 1986.What a waste EDSA I was.That obviously is not true.

The government structure under the 1987 Constitution, though by no means perfect, is better than the government that evolved from the 1973 Constitution.Imperfect as it is as a protest against the Marcos Constitution, in more ways than one it is truly democratic.

Congress today is structurally almost the same as that of the 1935 Constitution even if, in terms of the quality of membership, it suffers by comparison with those of the 1935 Congress.But at least it is different from the Batasang Pambansa.

As in the 1935 Constitution, the office of President is not free from the temptation towards to authoritarianism.Much depends on who holds the power.For the moment, we seem to be safe.

The Supreme Court membership today does not go through the same rigid screening as the members of the Court under the 1935 Constitution. But collectively it is an improvement on the Marcos Constitution.

The emotion and drama of February 1986 have died down and I do not see “people power” like that of EDSA I emerging.Nor do I see hubris precipitating radical reform.Not yet, anyway.What I see is an emerging people power in the form of energized local governments, unfortunately not yet nationwide but hitherto only here and there.But I also see corruption and popular indifference of a people lulled by economic and technological advances as major obstacle to progress.In the end, there is truth to the dictum that a people get the government they deserve.How can everyone be awakened to the realization that the future depends not on government but on all of us?

Saturday, February 19, 2011

It took some waiting, but eventually the Supreme Court said yes for the House of Representatives to go ahead with the impeachment of Ombudsman Merceditas Gutierrez.But it isn’t over yet.A reconsiderationwill almost certainly be asked for by the Ombudsman.Meanwhile the Speakerhas asked the members of the committee involved to hold their horses.At any rate, what is the score so far?

First, how did it all start?On two separate days two impeachment complaints were filed against Gutierrez.On a later date, however, both complaints were referred simultaneously to the Committee on Justice for action.Whereupon Gutierrez went to the Supreme Court asking that House action be stopped on the argument that there was violation of a provision of the Constitution.Gutierrez was referring to Article XI, Section 3 (5) which says: “No impeachment proceedings shall be initiated against the same official more than once within a period of one year.”

To this argument of Gutierrez the House replied that, if the Court should interfere with the impeachment action in the House, the Court would be entering into a field reserved by the Constitution for political actors.

The House was arguing from earlier jurisprudence which affirmed the following: “The history and contemporary understanding of the impeachment provisions support our reading of the constitutional language. The parties do not offer evidence of a single word in the history of the [US] Constitutional Convention or in contemporary commentary that even alludes to the possibility of judicial review in the context of impeachment powers.”

In the earlier Davide Impeachment Case, however, the Court had already rejected this argument saying that, whereas this may have been true in the context of the United States Constitution, this was not true under the Philippine Constitution.As the Court said in the Davide Impeachment Case, “The major difference between the judicial power of the Philippine Supreme Court and that of the U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court and lower courts, as expressly provided for in the Constitution, is not just a power but also a duty, and it was given an expanded definition to include the power to correct any grave abuse of discretion on the part of any government branch or instrumentality.”

From here the Court went on to discuss the meaning of the constitutional provision cited by Gutierrez.Again the Court went back to the earlier Davide Impeachment Case which had explained the meaning of the constitutional provision.The Court in the earlier case had pointed out that what the Constitution prohibited was not the initiation of more than one “complaint” in one year but the initiation of more then one “proceeding.”The Court said that proceeding only got going when the complaint was referred to the proper Committee and not when the complaint was filed.

The current Court explained the meaning further by showing the difference between igniting a matchstick and lighting a candle.“The Court, of course, does not downplay the importance of an impeachment complaint, for it is the matchstick that kindles the candle of impeachment proceedings.The filing of an impeachment complaint is like the lighting of a matchstick.Lighting the matchstick alone, however, cannot light up the candle, unless the lighted matchstick reaches or torches the candle wick.Referring the complaint to the proper committee ignites the impeachment proceeding.With a simultaneous referral of multiple complaints filed, more than one lighted matchsticks light the candle at the same time.What is important is that there should only be ONE CANDLE that is kindled in a year . . .”

Briefly, therefore, the Court said that there can be more than one complaint in one year but there can be only one proceeding in the same year.

These are the main issues in the Gutierrez impeachment case.As I said, however, it isn’t over until the decision of last February 15 becomes final.Nevertheless one may speculate about how things will go in the House.

My view on the matter is that, if the two complaints are really distinct, they must be treated in two distinct proceedings but both cannot take place in one year.There can only be one lighted candle in a year. The rule is analogous with criminal due process which prohibits charging a person with two separate offenses in one information unless the two can be compounded.The prohibition in the impeachment process is also a due process rule meant to be a safeguard against harassing a person with multiple proceedings within twelve months.

I understand that one of the grounds for the Gutierrez impeachment is betrayal of public trust.Betrayal of public trust as a ground for impeachment was deliberately included by the 1986 Constitutional Commission in order to provide a very broad ground for impeachment.It is a ground which can cover a multitude of serious sins.It seems, therefore, that the two current complaints can be fused into one under “betrayal of public trust.” The other allegations can serve merely as evidence of betrayal of public trust.

Saturday, February 12, 2011

Unless I am completely out of the loop, my fearless forecast is that an RHBill will become law. Demonstrations will not stop it.Nor do I see the justices of the Supreme Court agreeing to declare such a law totally invalid.

An RH Law would be the product of the exercise of police power.An exercise of police power is evaluated on the basis of the requirements of substantive due process.The requirements of substantive due process are simple enough to understand.To be valid, the exercise must, first, have a valid public purpose designed to serve the general welfare and not merely private benefit, and second, the means used to achieve such purpose must be reasonable, not oppressive nor arbitrary.Nor must the means used be the best to achieve the desired goal.Reasonableness does not demand the best means nor the sure-fire means.When the RH Bill becomes law and is challenged, it will be tested according to these standards.

What are the chances of an RH Law flunking these standards?First, will the coming RH Law have a valid public purpose?The public purpose of the RH Law is written all over its “Declaration of Policy” – protection of basic human rights to reproductive health, respect for cultural and religious beliefs and responsible parenthood, gender equality and equity, promotion of the welfare of children.As stated, these purposes are all defensible.

What about the means used to achieve these goals?It would be a thankless herculean task to argue that the whole thrust of the RH Bill is unreasonable, abusive, oppressive and arbitrary.But this does not mean that the entire Bill is invulnerable to challenge or to improvement.Let me attempt to discuss some of the points that might be debated.

Freedom of religion can give rise to some debatable issues in the implementation of the law.Let me just mention some.

Parents are justifiably concerned about the proper moral training of their children.The approved bill has retained the provision on a common sex education program for public and private schools to be formulated by the Department of Education (DepEd), the Commission on Higher Education (CHED), the Technical Education and Skills Development Authority (TESDA), the DSWD, and the DOH.Curiously, however, the bill also says that ‘the DepEd, CHED, DSWD, TESDA, and DOH shall provide concerned parents with adequate and relevant scientific materials on the age-appropriate topics and manner of teaching reproductive health education to their children.”Is this an indication that the bill is open to making exception for parents who wish to teach their own children?

If this exception for parents is what the bill envisions, there is a constitutional model for it.The Constitution says: “At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government.”Needless to say, religious schools will also want to design their own program.

The RH bill has also retained the provision which says that “employers with more than 200 employees shall provide reproductive health services to all employees in their own respective health facilities. Those with less than 200 workers shall enter into partnerships with hospitals, health facilities, and/or health professionals in their areas for the delivery of reproductive health services.”Notably, however, it does not specify the kind of reproductive health services to be given.But the Department of Labor is given the responsibility of implementing this provision.We will have to await how the Department of Labor will implement this and whether allowance will be made for religious objection.

Is it legitimate for the government to use public money for contraceptive services?Incidentally, the RH bill, in its definition of methods of family planning, has deleted specific reference to “pill, intra-uterine device (IUD), injectables, condoms, ligation, vasectomy . . .” It now merely says “safe, effective and legal methods, whether the natural, or artificial that are registered with the Food and Drug Administration (FD) of the Department of Health (DOH).”As to the use of public funds for these, it is good to remember that public money has no religious character.The rule on how to spend it is simple.Money can be drawn out of the public treasury only“in pursuance of an appropriation made by law.”The only limitation on Congress when funds are available is that the appropriation must be for a public purpose.

What this all comes down to is that a shot-gun approach to the RH Bill will not succeed. You don’t burn an entire house to make lechon.Nor will a Tahrir Square type of demonstration stop it. Such an approach can be a manifestation of intellectual bankruptcy.One must challenge each specific objectionable part and argue it out.After all, this is not a fight against a Hosni Mubarak.

Saturday, February 5, 2011

The House of Representatives has approved its final version of the RH Bill.I myself think that it is a much improved version.It will next go to the Senate and I anticipate that the two houses will agree on a final version to be sent to the President for his approval.I am certain, from what the President has been saying so far, that he will not veto what is presented to him.Thereafter it will undergo the required publication before it finally takes effect.After these happen, the debate on the bill, law by then, will go to a different level.

The judicial battle lines will be along moral fronts, often dependent on factual issues and where our people divide largely on the basis of religious belief, (sometimes appealing to science or pseudo-science), and along constitutional lines, which should be “fun.”I am also aware that people are often tempted to consider whatever they do not agree with as unconstitutionalThis, of course, is ridiculous.

Today I propose to join in the constitutional “fun” and leave moral issues to holier men and professionally trained moralists while also allowing for occasional excursions into science, about which I know little.

The opponents of the RH Bill will make a constitutional issue out of it arguing from various constitutional provisions.Likely starting points are two constitutional provisions found in Article II.We might, therefore, begin by asking what the binding force of Article II is.

The article is titled “Declaration of Principles and State Policies.”Sections 1 to 6 contain the “Principles” that are already engrafted into the structure and life of the nation.The State cannot depart from these principles.For instance, Congress may not set up a dictatorial government because that would run counter to Section 1 which declares our state to be democratic.

Sections 7 to 28 are called “State Policies.”Except for one or two of them, they do not yet contain commands that must be followed.Unlike the provisions of the Bill of Rights, they await implementing legislation from Congress.

There is a wide range of options open for Congress to use in implementing them.In the process of choosing, there necessarily will be a wide room for debate to determine what is best for the welfare of the nation.In the debate, conflicting value judgments will come into play. But as the Compendium on the Social Teaching of the Church notes, “Those responsible for government are required to interpret the common good of their country not only according to the guidelines of the majority but also according to the effective good of all the members of the community, including the minority.”

Two provisions in Article II will play a starting role in the constitutional debate.They are Sections 11 and Section 12.

Section 11 says: “The State values the dignity of every human person and guarantees full respect for human rights.”But this provision will not give the judiciary a handle for passing judgment on the constitutionality of the RH Bill.It is a motherhood statement.And the supporters of the RH bill will simply say that this is precisely the reason why they have made an effort to make the Bill reflect this non-debatable value.

Section 12 has a little more to say.It says: “The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception.”

The first sentence has been the subject of a number of Court decisions which clearly declare that how to protect the family is for Congress to decide. The Constitution makes no specific prescription.

As for the second sentence, the protection given to the unborn is only “from conception,” that is, from the earliest moment of life. The earliest that life begins is the moment of fertilization.This is enough to justify the prohibition of abortion clearly repeated in the RH Bill.But it says nothing about what to prohibit before life begins.

This brings us to the use of contraceptive methods.There are those who argue that contraception kills life.That is true if the contraceptive means used have the effect of expelling a fertilized ovum.Those who argue that contraceptives currently in the market kill life must be able to point to the precise contraceptive devises that are abortive. A sweeping generalization is irresponsible.

Very much involved in the debate about contraception is the matter of religious liberty. We have to be aware of the fact that we live in a pluralist society where various religious groups disagree about the morality of artificial contraception.

Freedom of religion means more than just the freedom to believe.It also means the freedom to act or not to act according to what one believes.And this freedom is violated when one is compelled to act against one’s belief or is prevented from acting according to one’s belief.

In our society, while people of good faith may find near unanimity on the matter of abortion as defined in the Penal Code, there clearly is sharp division in the matter of contraception.The division is drawn largely along religious lines. The official Catholic teaching, for instance, is that only natural family planning is allowed.The religion of many non-Catholics, however, prescribes a different set of rules on sexual morality.And, as much as Catholics, they too have the right of moral equality and moral freedom under our democratic system. The RH Bill clearly refuses to require all to follow Catholic teaching.

There are other possible constitutional issues in the RH Bill but space limitation allows me to say only so much for now.

The House of Representatives has approved its final version of the RH Bill.I myself think that it is a much improved version.It will next go to the Senate and I anticipate that the two houses will agree on a final version to be sent to the President for his approval.I am certain, from what the President has been saying so far, that he will not veto what is presented to him.Thereafter it will undergo the required publication before it finally takes effect.After these happen, the debate on the bill, law by then, will go to a different level.

The judicial battle lines will be along moral fronts, often dependent on factual issues and where our people divide largely on the basis of religious belief, (sometimes appealing to science or pseudo-science), and along constitutional lines, which should be “fun.”I am also aware that people are often tempted to consider whatever they do not agree with as unconstitutionalThis, of course, is ridiculous.

Today I propose to join in the constitutional “fun” and leave moral issues to holier men and professionally trained moralists while also allowing for occasional excursions into science, about which I know little.

The opponents of the RH Bill will make a constitutional issue out of it arguing from various constitutional provisions.Likely starting points are two constitutional provisions found in Article II.We might, therefore, begin by asking what the binding force of Article II is.

The article is titled “Declaration of Principles and State Policies.”Sections 1 to 6 contain the “Principles” that are already engrafted into the structure and life of the nation.The State cannot depart from these principles.For instance, Congress may not set up a dictatorial government because that would run counter to Section 1 which declares our state to be democratic.

Sections 7 to 28 are called “State Policies.”Except for one or two of them, they do not yet contain commands that must be followed.Unlike the provisions of the Bill of Rights, they await implementing legislation from Congress.

There is a wide range of options open for Congress to use in implementing them.In the process of choosing, there necessarily will be a wide room for debate to determine what is best for the welfare of the nation.In the debate, conflicting value judgments will come into play. But as the Compendium on the Social Teaching of the Church notes, “Those responsible for government are required to interpret the common good of their country not only according to the guidelines of the majority but also according to the effective good of all the members of the community, including the minority.”

Two provisions in Article II will play a starting role in the constitutional debate.They are Sections 11 and Section 12.

Section 11 says: “The State values the dignity of every human person and guarantees full respect for human rights.”But this provision will not give the judiciary a handle for passing judgment on the constitutionality of the RH Bill.It is a motherhood statement.And the supporters of the RH bill will simply say that this is precisely the reason why they have made an effort to make the Bill reflect this non-debatable value.

Section 12 has a little more to say.It says: “The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception.”

The first sentence has been the subject of a number of Court decisions which clearly declare that how to protect the family is for Congress to decide. The Constitution makes no specific prescription.

As for the second sentence, the protection given to the unborn is only “from conception,” that is, from the earliest moment of life. The earliest that life begins is the moment of fertilization.This is enough to justify the prohibition of abortion clearly repeated in the RH Bill.But it says nothing about what to prohibit before life begins.

This brings us to the use of contraceptive methods.There are those who argue that contraception kills life.That is true if the contraceptive means used have the effect of expelling a fertilized ovum.Those who argue that contraceptives currently in the market kill life must be able to point to the precise contraceptive devises that are abortive. A sweeping generalization is irresponsible.

Very much involved in the debate about contraception is the matter of religious liberty. We have to be aware of the fact that we live in a pluralist society where various religious groups disagree about the morality of artificial contraception.

Freedom of religion means more than just the freedom to believe.It also means the freedom to act or not to act according to what one believes.And this freedom is violated when one is compelled to act against one’s belief or is prevented from acting according to one’s belief.

In our society, while people of good faith may find near unanimity on the matter of abortion as defined in the Penal Code, there clearly is sharp division in the matter of contraception.The division is drawn largely along religious lines. The official Catholic teaching, for instance, is that only natural family planning is allowed.The religion of many non-Catholics, however, prescribes a different set of rules on sexual morality.And, as much as Catholics, they too have the right of moral equality and moral freedom under our democratic system. The RH Bill clearly refuses to require all to follow Catholic teaching.

There are other possible constitutional issues in the RH Bill but space limitation allows me to say only so much for now.